DIVISION OF CHILD PROTECTION AND PERMANENCY v. J.S.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4899-11T4

DIVISION OF CHILD PROTECTION

AND PERMANENCY,

Plaintiff-Respondent,

v.

J.S.,

Defendant-Respondent,

and

T.S.,

Defendant-Appellant.

______________________________________

IN THE MATTER OF A.S. and D.S.,

Minors.

______________________________________

Argued May 29, 2013 Decided June 28, 2013

Before Judges Yannotti and Hoffman.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-120-11.

Ryan T. Clark, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Clark, on the brief).

Jody A. Carbone, Deputy Attorney General, argued the cause for respondent Division of Child Protection and Permanency (Jeffrey S. Chiesa, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Carbone, on the brief).

Olivia Belfatto Crisp, Assistant Deputy Public Defender, argued the cause for minors (Joseph E. Krakora, Public Defender, Law Guardian,attorney; Ms. Crisp, on the brief).

J.S., respondent pro se.

PER CURIAM

T.S. appeals from an order entered by the Family Part on March 22, 2012, which terminated this action brought by the Division of Child Protection and Permanency (Division)1 for the care and supervision of two minor children, A.S. and D.S. We affirm.

A.S. was born in July 1995, and D.S. was born in October 1998. T.S. is the children's mother, and J.S. is their father. In January 2010, the Division learned that T.S. had been arrested on November 9, 2009, after the police received a report that T.S. was driving while intoxicated (DWI) with A.S. and another minor in the car. T.S. was charged with DWI and endangering the welfare of the children.

At the time the Division received the report, A.S. and D.S. were living with their parents. A caseworker investigated the matter and learned that T.S. had a history of alcohol abuse, had been diagnosed as clinically depressed, and suffered from an eating disorder. The caseworker also learned that T.S. was undergoing treatment for her alcohol abuse and the eating disorder.

In February 2010, J.S. contacted the caseworker and advised that T.S. was still in treatment but was calling home and harassing him and the children. He said that T.S. was scheduled to be discharged from a treatment facility and the children were frightened that T.S. would return home.

The Division's caseworker met with T.S. on February 2, 2010. T.S. acknowledged that she had a "serious problem" with alcohol. She entered treatment in December 2009 and claimed she did not consume alcohol for a year. T.S. admitted that on November 9, 2009, she drove her car while under the influence of alcohol with A.S. and another minor in the car. She said she consumed alcohol two or three times a week, and at times drank to the point of intoxication in the children's presence.

The Division determined that the allegations of neglect had been substantiated. T.S. informed the Division she was going to be released from treatment shortly. She said that she wanted to return home to care for the children. She signed a case plan in which she agreed to provide the children with a safe living environment and refrain from the use of alcohol.

T.S. was released from treatment on February 5, 2010, and thereafter was residing with her parents in New York State. It appears that, on February 11, 2010, T.S. was arrested for DWI, after she was involved in auto accident and found passed out behind the wheel of her car. At some point, J.S. obtained a temporary restraining order which apparently barred T.S. from the marital home, but permitted her to have supervised visits and telephone contact with the children.

In 2010, J.S. commenced divorce proceedings, and the Family Part entered a pendente lite order on September 9, 2010, stating that the parties would have joint legal custody of the children, and J.S. would continue to be the parent of primary residence. The order additionally stated that T.S. could have non-overnight parenting time with the children at specified times, but such parenting time was contingent upon T.S.'s compliance with her treatment program.

On October 1, 2010, T.S. was admitted to a hospital after she became heavily intoxicated. The Division learned that, before her admission, T.S. phoned A.S. and mentioned suicide. A.S. was reportedly very upset by her mother's statement. T.S. was discharged from the hospital the same day. Several days later, T.S. contacted the Division to discuss the matter and denied that she had been consuming alcohol. She claimed that she did not recall the conversation with A.S.

The Division's caseworker contacted the children's therapist, who expressed concern about T.S.'s interaction with the children. The therapist indicated that T.S. appeared to be mentally unstable and was making inappropriate comments about the divorce to the children. The therapist also stated that D.S. had been having hallucinations.

On October 8, 2010, the Division filed verified complaint under Title Nine, N.J.S.A. 9:6-8.21 to -8.73, and Title 30, N.J.S.A. 30:4C-11 to -14, and sought an order placing the children under its care and supervision. The court considered the matter on October 21, 2010, and entered the order requested. The court's order provided that J.S. would continue to have physical custody of the children.

The order additionally required T.S. to attend psychological, psychiatric and substance abuse evaluations and submit to random drug/alcohol screenings. The order precluded T.S. from entering the home where the children were living, but permitted her to have supervised visitation, at the children's discretion.

The court conducted a fact-finding hearing in the case on December 2, 2010, to determine whether T.S. neglected the children. The court entered an order, which stated that T.S. admitted to operating a motor vehicle while under the influence of alcohol, when A.S. and another child were in the car. T.S. acknowledged that her actions placed the children at risk of harm.

The court also conducted a compliance review hearing on December 2, 2010. In that proceeding, the Division presented a report from Bergen Regional Medical Center (BRMC), which indicated that T.S. had not been compliant with its mental health and substance abuse programs. The Division additionally presented a report from the children's therapist, who said that therapy involving the children and T.S. was premature. The therapist also indicated that the children were not ready for visits with their mother.

The court conducted another compliance review proceeding on March 3, 2011, and entered an order on that date requiring T.S. to attend meetings of a substance abuse treatment support group, submit to random drug/alcohol screenings, and attend psychological counseling. The court's March 3, 2011 order also restrained T.S. from any unsupervised contact with the children, but permitted her to have supervised visits, based upon the recommendation of the children's therapist.

Another compliance review hearing took place on June 2, 2011. At that hearing, the court was informed that T.S. had contacted A.S., after which A.S. was hospitalized for psychiatric treatment. The court was told that the children did not want visits with their mother, and the children's therapist advised against such visits.

The court entered an order dated June 2, 2011, which stated, among other things, that T.S. was to continue with random drug/alcohol screenings, attend meetings of a substance abuse treatment support group, and participate in psychological counseling. The order provided that T.S. would be permitted weekly supervised visits, at the discretion of the children and their therapist. The order further provided that J.S. must participate in psychotherapy, and T.S. must attend psychiatric treatment and "medication monitoring."

At the next compliance review hearing, which took place in September 2011, the Division reported that A.S. was ready to begin therapeutic visits with her mother, but D.S. was not ready to include T.S. in his therapy sessions. The Law Guardian suggested that the children's therapist and T.S.'s therapist should work together so that therapy could begin.

The court conducted another compliance review hearing in December 2011, and was informed T.S. had various medical issues which adversely affected her mental health. T.S.'s therapist recommended against therapeutic visits with A.S. at that time. The children's therapist also recommended against therapy sessions with the children.

On December 27, 2011, T.S. was admitted to a hospital because she had threatened suicide and was consuming alcohol. Her therapist and the children's therapist agreed that family therapy was not appropriate at that time. In February 2012, T.S. was again admitted to BRMC, due to mental health issues and further consumption of alcohol. In March 2012, T.S. was referred to a long-term residential treatment program.

Another compliance review hearing took place on March 22, 2012. The Division asked the court to terminate the litigation and impose restraints. The Law Guardian argued that the case should be dismissed because it was disruptive to the children, who were then sixteen and thirteen years of age, respectively. The Law Guardian stated that the children wanted to have therapeutic visits with T.S. but only when recommended by their therapist. The Law Guardian noted that T.S. could make an application for visitation in the matrimonial case.

T.S.'s attorney opposed dismissal of the action. T.S.'s attorney also opposed the imposition of any restraints, stating that T.S. believed the children wanted to have contact with her and should be able to do so freely. The judge asked T.S.'s attorney if he "really wanted a dispositional hearing" and counsel said that, because T.S. was then in an in-patient program, the custody and parenting time previously established by the court was appropriate.

T.S.'s attorney stated that "[t]he only thing the dispositional hearing" would involve would be to have the court "possibly interview these children." Counsel noted that T.S. had previously ruled out an independent evaluation of the children, stating that this was something "she did not want to put the children through."

The judge placed her decision on the record, concluding that the litigation should be terminated. The judge noted that if T.S. is successful in her treatment program, she might have unsupervised contact with the children at some point in the future. But the judge said that such contact could not occur in the foreseeable future, while T.S. was in her treatment program and while the children indicated they wanted someone else present when they visited her.

The judge determined that the restraints imposed during the litigation should continue and a dispositional hearing was neither necessary nor appropriate. The judge stated that T.S. could "at some point in the future" make an application in the matrimonial action to lift the restraints.

Accordingly, the judge entered an order dated March 22, 2012, dismissing the action. The order provided that T.S. and J.S. had legal custody of the children but they would remain in J.S.'s physical custody. The order stated that T.S. could have unsupervised phone contact with the minors, if such contact was initiated by them. The order also stated that T.S. could have supervised therapeutic visits with the children, upon the recommendation of T.S.'s therapist and the children's therapist, if they were still in therapy and wanted such visits.

This appeal followed. Thereafter, T.S. filed a motion seeking a temporary remand to the Family Part to direct the resumption of visitation pending disposition of the appeal. We denied the motion. J.S. later filed what he characterized as a motion in opposition to the appeal, but was instead a motion to supplement the record with information concerning events that have occurred since March 22, 2012, when the Family Part judge entered the order that is the subject of this appeal. We have denied that motion.

T.S. raises the following arguments for our consideration:

I. THE TRIAL COURT ERRED BY NOT CONDUCTING A PROPER DISPOSITIONAL HEARING.

II. THE DIVISION LACKS THE AUTHORITY TO TAKE AWAY ONE PARENT'S RIGHT TO JOINT RESIDENTIAL CUSTODY OF HER CHILDREN AND TO GIVE EXCLUSIVE RESIDENTIAL CUSTODY OF THE CHILDREN TO THE OTHER PARENT.

III. THE TRIAL COURT HAD NO AUTHORITY TO ENTER AN ORDER WITH OPEN ENDED CONDITIONS THAT SURVIVED THE DISMISSAL OF THE CASE.

We are satisfied from our review of the record that T.S.'s arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(1)(E). However, we add the following brief comments.

T.S. argues that the court erred by failing to conduct a disposition hearing. She contends that such a hearing is required by New Jersey Division of Youth & Family Services v. G.M., 198 N.J. 382 (2009). We do not agree.

In G.M., the mother and father were divorced and shared joint legal custody of their children, but the mother had primary physical custody. Id. at 387. After the mother had an altercation with the thirteen-year-old daughter, the Division filed an abuse and neglect complaint and was awarded custody and control of the children. Ibid. The children were thereafter placed with their father in Florida. Ibid.

The trial court found abuse and neglect at a fact-finding hearing, continued the children's placement with their father and required the Division to provide services to the mother. Ibid. The court conducted various case management conferences, and thereafter granted the Division's motion to dismiss the case, advising the mother that she could seek custody or parenting time in a matrimonial action. Ibid.

The Supreme Court noted that, in a Title Nine action, after the fact-finding hearing, a disposition hearing may be commenced immediately or at some other time. Id. at 399 (citing N.J.S.A. 9:6-8.47). The dispositional hearing "must be held to determine the appropriate outcome of the case." Ibid. (citing N.J.S.A. 9:6-8.50). The Court added:

Notably, the court has multiple alternatives in determining the appropriate disposition. The court may enter a suspended judgment. N.J.S.A. 9:6-8.52; release the child to the custody of the parent or guardian responsible for the child's care at the time of the filing of the complaint, N.J.S.A. 9:6-8.53; place the child with "a relative or other suitable person," N.J.S.A. 9:6-8.54(a); make an order of protection, N.J.S.A. 9:6-8.55; place the offending parent or guardian on probation, N.J.S.A. 9:6-8.56; and/or require the offending person to accept therapeutic services, N.J.S.A. 9:6-8.51(a). In all cases the court "shall state the grounds for any disposition made." N.J.S.A. 9:6-8.51(b).

[Id. at 399-400.]

The Court in G.M. determined that the trial court erred by failing to conduct an appropriate dispositional hearing. Id. at 402. The Court noted that the mother did not have notice of the Division's application to dismiss its complaint, and the case had been dismissed without sworn witnesses, documentary evidence or testimony of expert witnesses. Ibid. The Court indicated that the trial court should conduct a hearing to determine whether the children could be safely released to the custody of their mother, who was responsible for their care when the Division filed its complaint or whether some other disposition was appropriate. Ibid.

We are satisfied that the Family Part judge correctly found that G.M. did not require a dispositional hearing in this case. As the record shows, when the judge considered the Division's application to terminate the litigation, the children could not be released safely to T.S.'s custody. She was still being treated for her substance abuse problems and mental health issues. Furthermore, the judge's order terminating the action did not alter the custody arrangements that were in place when the Division filed the action.

As we stated previously, before the Division filed its complaint, the judge in the matrimonial action entered an order which provided that T.S. and J.S. had legal custody of A.S. and D.S. and J.S. had primary residential custody of the children. The March 22, 2012 order terminating this litigation continued that custody arrangement.

In addition, as we have explained, during the March 22, 2012 proceedings the judge asked T.S.'s counsel whether he wanted a dispositional hearing. T.S.'s counsel indicated he would only seek such a hearing so that the judge could "possibly" interview the children. However, interviews of the children were not required because the record showed that the children had made clear they did not want visits with their mother, until their therapist recommended visitation.

T.S. also argues that the judge had no authority to enter an order with "open-ended" conditions that survived the dismissal of this case. T.S. notes that N.J.S.A. 9:6-8.51 permits the court to enter orders setting forth reasonable conditions of behavior to be observed for a specified period of time, but argues that N.J.S.A. 9:6-8.53(a) limits the duration of such an order to one year.

We are not persuaded by these arguments. The March 22, 2012 order is not specifically limited in its duration; however, the judge indicated that, if T.S. wishes to alter the custody or visitation arrangements provided in the order, she can make an application at any time in the matrimonial action. We reject T.S.'s contention that Title Nine precludes the court from entering such an order.

1 The Division was previously known as the Division of Youth and Family Services. See L. 2009, c. 16, eff. June 29, 2012.